Bell P at [1]; Brereton JA at [4]; Wright J at [51].
Decision:
(1) Grant the applicant leave to appeal.
(2) Direct the appellant to file a notice of appeal in the form of the draft notice of appeal in the White Folder within 7 days.
(3) Allow the appeal.
(4) Set aside the orders made by the District Court on 10 December 2020 and, in lieu, order that the notice of motion filed on 22 September 2020 be dismissed with the applicant on that motion to pay the cost of the respondent to that motion.
(5) The respondent is to pay the applicant/appellant’s costs of the application for leave to appeal and the appeal.
Catchwords:
CIVIL PROCEDURE – Pleadings – Striking out –Appeal against striking out of Statement of Claim in full – Where quantum of damages claimed identical to value of real property subject to family law proceedings – Whether proceedings brought for an improper or collateral purpose and thus an abuse of process – No sufficient basis for finding of abuse – Whether District Court erred in striking out applicant’s statement of claim as defective in form – Whether reasonable causes of action – Statement of claim not so defective as to justify striking out
TORTS – Malicious prosecution – Damage – Where limitations on recoverability of costs in subject proceedings – Whether legal costs of defence and lost earnings are actionable damage
TORTS – Malicious prosecution – Elements – Whether malice and absence of reasonable or probable cause adequately particularised – Whether necessary to show that prosecutor prejudiced by false information – Whether Apprehend Domestic Violence Order proceedings capable of founding malicious prosecution claim
TORTS – Trespass to land – Damage – Whether distress to children of claimant actionable damage
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Rock v Henderson [2021] NSWCA 155
Case
[2021] NSWCA 155
Decision Date
CaseChat Overview and Summary
The appeal concerned a dispute between Rock (the applicant) and Henderson (the respondent) regarding the striking out of the applicant's Statement of Claim in full by the District Court. The quantum of damages claimed in the proceedings was identical to the value of real property that was the subject of separate family law proceedings.
The Court of Appeal was required to determine whether the District Court erred in striking out the applicant's Statement of Claim. Specifically, the court considered whether the proceedings were brought for an improper or collateral purpose, constituting an abuse of process, and whether the Statement of Claim was so defective in form as to justify its striking out, or if reasonable causes of action were disclosed. The court also considered issues relating to claims for malicious prosecution, including the recoverability of legal costs and lost earnings as actionable damage, whether malice and absence of reasonable or probable cause were adequately particularised, and whether Apprehend Domestic Violence Order proceedings could found a malicious prosecution claim. Finally, the court considered whether distress to children of the claimant constituted actionable damage for trespass to land.
The Court of Appeal found that there was no sufficient basis for concluding that the proceedings were an abuse of process. The court reasoned that the Statement of Claim was not so defective in form as to justify striking it out and that reasonable causes of action were disclosed. The court allowed the appeal, setting aside the District Court's orders and dismissing the notice of motion that had led to the striking out of the Statement of Claim. The court ordered that the applicant pay the respondent's costs of that motion, but the respondent was ordered to pay the applicant's costs of the application for leave to appeal and the appeal itself.
Orders
Orders of the court
(1) Grant the applicant leave to appeal.
(2) Direct the appellant to file a notice of appeal in the form of the draft notice of appeal in the White Folder within 7 days.
(3) Allow the appeal.
(4) Set aside the orders made by the District Court on 10 December 2020 and, in lieu, order that the notice of motion filed on 22 September 2020 be dismissed with the applicant on that motion to pay the cost of the respondent to that motion.
(5) The respondent is to pay the applicant/appellant’s costs of the application for leave to appeal and the appeal.